**Exhibit 10.jjj**

 

 

 

 

 

 

 

 

**CINERGY CORP. EXCESS PROFITSHARING PLAN**

 

(Effective as of January 1, 2003)

 

 

 

 

 

----

(Note:  This Table of Contents is not part of theCinergy Corp. Excess Profit Sharing Plan; instead, this Table of Contents ismerely for convenience of reference.)

 

 

**TABLE OF CONTENTS**

** **

 
| ARTICLE I   | NATURE AND PURPOSE  OF PLAN            |   |
|-------------|----------------------------------------|--------|
|        |                                   |   |
| 1.1         | Type of Plan                           |   |
| 1.2         | Purpose of Plan                        |   |
|        |                                   |   |
| ARTICLE  II | DEFINITIONS  AND RULES OF CONSTRUCTION |   |
|        |                                   |   |
| 2.1         | Definitions                            |   |
| 2.2         | Rules of Construction                  |   |
|        |                                   |   |
| ARTICLE III | ELIGIBILITY  AND PARTICIPATION         |   |
|        |                                   |   |
| 3.1         | Eligibility                            |   |
| 3.2         | Employer Profit  Sharing Contributions |   |
| 3.3         | Cessation of Participation             |   |
|        |                                   |   |
| ARTICLE IV  | PARTICIPANTS’ ACCOUNTS            |   |
|        |                                   |   |
| 4.1         | Establishment of Account               |   |
| 4.2         | Earnings and Losses                    |   |
| 4.3         | Credits to Account                     |   |
| 4.4         | Accounts Unfunded                      |   |
|        |                                   |   |
| ARTICLE V   | DISTRIBUTION OF  BENEFITS              |   |
|        |                                   |   |
| 5.1         | General Distribution Rules             |   |
| 5.2         | Distribution Upon  a Change in Control |   |
| 5.3         | Death Benefits                         |   |
| 5.4         | Designation of Beneficiary             |   |
|        |                                   |   |
| ARTICLE VI  | ADMINISTRATION                         |   |
|        |                                   |   |
| 6.1         | Administrator                          |   |
| 6.2         | Notices                                |   |
| 6.3         | Powers and Duties of  the Committee    |   |

 

 

i

----

 
| ARTICLE VII  | AMENDMENT AND  TERMINATION            |   |
|--------------|---------------------------------------|--------|
|         |                                  |   |
| 7.1          | Amendment                             |   |
| 7.2          | Termination                           |   |
|         |                                  |   |
| ARTICLE VIII | MISCELLANEOUS                         |   |
|         |                                  |   |
| 8.1          | Relationship                          |   |
| 8.2          | Other Benefits and Plans              |   |
| 8.3          | Anticipation of Benefits              |   |
| 8.4          | No Guarantee of Continued  Employment |   |
| 8.5          | Waiver of Breach                      |   |
| 8.6          | Protective Provisions                 |   |
| 8.7          | Benefit                               |   |
| 8.8          | Responsibility for  Legal Effect      |   |
| 8.9          | Tax Withholding                       |   |
|         |                                  |   |
|         | AUTHORIZED SIGNATURE                  |   |

 

 

ii

----

 

# **CINERGY CORP. EXCESS PROFIT SHARING PLAN**

 

**ARTICLE I**

**NATURE AND PURPOSE OF PLAN**

 

1.1                                 Type of Plan.  The name of this Plan is the Cinergy Corp.Excess Profit Sharing Plan, effective January 1, 2003.  The Plan is maintained by the Company as anunfunded, nonqualified deferred compensation plan for a select group of theEmployer’s management or highly-compensated employees.

 

1.2                                 Purpose of Plan.  The purpose of the Plan is to restore theadditional employer profit sharing contributions that an Eligible Employeewould have received under the Qualified Plan if the limitations of CodeSubsection 415(c) and Code Paragraph 401(a)(17) were not imposed to limit theEligible Employee’s employer profit sharing contributions under the QualifiedPlan.

 

**ARTICLE II**

**DEFINITIONSAND RULES OF CONSTRUCTION**

 

2.1                                 Definitions.  As used in the Plan, the following words andphrases, when capitalized, have the following meanings except when used in acontext that plainly requires a different meaning:

 

(a)                                  “Account” means the record of a Participant’s total interest in thePlan.

 

(b)                                 “Beneficiary” means, with respect to a Participant, the person orpersons designated pursuant to Section 5.4 to receive benefits under thePlan in the event of the Participant’s death.

 

(c)                                  “Board of Directors” means the duly constituted board of directors ofthe Company on the applicable date.

 

(d)                                 “Change in Control” means an event described in Subsection 5.2(c).

 

(e)                                  “Code” means the Internal Revenue Code of 1986, as amended fromtime to time, and interpretive rules and regulations thereunder.

 

(f)                                    “Committee” means a committee composed of those members of theCompensation Committee of the Board of Directors who are not Participants inthe Plan.  To the extent authority toadminister the Plan has been delegated to the Cinergy Corp. Benefits Committee,the term “Committee” shall mean the Cinergy Corp. Benefits Committee.

 

(g)                                 “Company” means Cinergy Corp., a Delaware Corporation, and anycorporation that shall succeed to its business and adopt the Plan.

 

1

----

 

(h)                                 “Effective Date” means January 1, 2003.

 

(i)                                     “Eligible Employee” means a management or highly compensated Employeewho is selected by the Committee to participate in this Plan.

 

(j)                                     “Employee” means any person who is classified by the Employer as anemployee, including officers of the Company or a Related Employer.

 

(k)           “Employer”means the Company and any Related Employer.

 

(l)                                     “Employer Profit Sharing Contribution” means, with respect to aParticipant, the contribution made by the Employer on behalf of a Participantpursuant to Section 3.2.

 

(m)                               “ERISA” means the Employee Retirement Income Security Act of 1974, asamended from time to time, and interpretative rules and regulations thereunder.

 

(n)                                 “Insolvent” means, with respect to the Company, the Company being unableto pay its debts as they are due, or the Company being subject to a pendingproceeding as a debtor under the United States Bankruptcy Code.

 

(o)                                 “Investment Options” means, with respect to any period, the investmentoptions that the Committee makes available to Participants under the Plan.  The Committee, in its sole discretion, mayfrom time to time establish procedures under which one or more InvestmentOptions are made available, in accordance with terms and conditions establishedby the Committee, only to certain Participants and/or only for certain periods.

 

(p)                                 “Participant” means an Eligible Employee or former Eligible Employee whohas an interest in the Plan pursuant to Section 3.2.

 

(q)                                 “Plan” means this instrument, as amended from time to time, and thenonqualified deferred compensation plan so established.

 

(r)                                    “Plan Year” means a calendar year commencing on or after January 1,2003.

 

(s)                                  “Qualified Plan” means collectively the defined contribution plan(s)intended to meet the qualification requirements of Code Subsection 401(a) thatthe Committee, in its sole discretion, may designate from time to time, andwhich shall initially be limited to the Cinergy Corp. Non-Union Employees’401(k) Plan.

 

2

----

 

(t)                                    “Rabbi Trust” means the grantor trust that the Company, in its solediscretion, may establish pursuant to Subsection 4.4(b) for the deposit offunds to be used for the Employers’ purpose of paying benefits accrued underthe Plan, subject to the claims of the Employers’ general creditors in theevent that any Employer becomes Insolvent.

 

(u)                                 “Related Employer” means any Employer that, together with the Company,is under common control or a member of an affiliated service group, asdetermined under Code Subsections 414(b), (c), (m), and (o).

 

(v)                                 “Termination of Employment” means, with respect to a Participant, thecessation of the relationship of Employer and Employee between the Participantand the Employer for any reason other than the Participant’s death.  A Participant shall not be treated as havingincurred a Termination of Employment until the employment relationship betweenthe Participant and all Related Employers has terminated.

 

(w)                               “Trustee” means the trustee of the Rabbi Trust that the Company, in itssole discretion, may establish pursuant to Subsection 4.4(b).

 

2.2                                 Rules of Construction.  The following rules of construction shallgovern in interpreting the Plan.  Theprovisions of this Plan shall be construed and governed in all respects underand by the internal laws of the State of Ohio, to the extent not preempted byfederal law.  Words used in themasculine gender shall be construed to include the feminine gender, whereappropriate, and vice versa.  Words usedin the singular shall be construed to include the plural, where appropriate,and vice versa.  The headings andsubheadings in the Plan are inserted for convenience of reference only and arenot to be considered in the construction of any provision of the Plan.  If any provision of the Plan shall be heldto be illegal or invalid for any reason, that provision shall be deemed to benull and void, but the invalidation of that provision shall not otherwiseimpair or affect the Plan.

 

**ARTICLE III**

**ELIGIBILITYAND PARTICIPATION**

 

3.1                                 Eligibility.  Participation in the Plan is limited toEligible Employees.  It is intended thatparticipation be limited to Employees who will qualify as members of a “selectgroup of management or highly compensated employees” under Title I of ERISA.

 

3.2                                 Employer ProfitSharing Contributions.  If an Eligible Employee iscredited with an employer profit sharing contribution under the Qualified Planfor a Plan Year, to the extent applicable the Employer shall credit an EmployerProfit Sharing Contribution to the Participant’s Account equal to theadditional employer profit sharing contribution that the Eligible Employeewould have had credited to his

 

3

----

 

account in the Qualified Plan for the Plan Year ifthe limitations of Code Subsection 415(c) and Code Paragraph 401(a)(17) werenot imposed to limit the Eligible Employee’s employer profit sharing contributionunder the Qualified Plan.

 

3.3                                 Cessation ofParticipation.  Any Participant who ceases tobe an Eligible Employee, but continues to be an Employee, shall cease to beeligible to receive contributions under this Article but shall continue tohave a Account, shall continue to be credited with earnings and losses on hisAccount under Section 4.2 (until the Account is fully distributed pursuantto Article V) and shall be entitled to receive benefits underArticle V.

 

**ARTICLE IV**

**PARTICIPANTS’ACCOUNT**

 

4.1                                 Establishment of Account.  The Committee shall create and maintainadequate records to disclose the interest in the Plan of each Participant andBeneficiary.  Records shall be in theform of individual bookkeeping accounts, which shall be credited withcontributions pursuant to Sections 3.2 and earnings and losses pursuant toSection 4.2, and debited with any payments pursuant toArticle V.  The Participant shallhave the same vested interest in his Account under the Plan as he has withrespect to employer profit sharing contributions under the Qualified Plan, andall determinations regarding the Participant’s vested interest in his Accountunder the Plan shall be made by the Committee in accordance with the terms ofthe Qualified Plan.  Notwithstanding thepreceding sentence, the Participant’s interest in his Account shall be subjectto the claims of the Employers’ general creditors in the event the Employerbecomes Insolvent.

 

4.2           Earnings and Losses.

 

(a)                                  Deemed Investment of Accounts.  During each Plan Year, a Participant’sAccount shall be credited with earnings and losses as though they are invested,pursuant to Subsection (b), Subsection (c) or both, as applicable, inone or more of the Investment Options. The deemed investment of a Participant’s Account among the InvestmentOptions is solely the measure of the investment performance of theAccount.  It does not give theParticipant any ownership interest in any Investment Option, nor does it bindthe Company, the Committee, or the Trustee as to the investment of any RabbiTrust or any other amounts represented by the Account.

 

(b)                                 Initial Deemed Investment.  Each Employer Profit Sharing Contributioninitially shall be deemed invested in such Investment Option(s) as theCommittee, in its sole discretion, may from time to time designate ininvestment procedures, and which initially shall be the Investment Option knownas the Cinergy Corp. Common Stock Fund. The Employer Profit Sharing Contribution for each Plan Year and earningsand losses thereon 

 

4

----

 

shall remain deemed invested in such Investment Option(s) until the EmployerProfit Sharing Contribution for the Plan Year (and earnings thereon) becomessubject to Participant direction, which shall occur at such time or times asthe Committee, in its sole discretion, may from time to time prescribe ininvestment procedures, and which initially shall be the earlier of (i) the dateon which the Participant attains age 50 or (ii) the date that is three yearsfrom the date that the Employer Profit Sharing Contribution for the Plan Yearis credited to the Participant’s Account. An Employer Profit Sharing Contribution that is subject to Participantdirection shall be deemed invested in accordance with Subsection (c).

 

(c)                                  Election Procedure.  Each Participant may make elections, on aform provided by the Committee, to allocate the portion, if any, of his Accountthat is subject to Participant direction among the Investment Options.  If the Participant fails to make an electionwith respect to his Account, he shall be deemed to have elected to allocate theportion of his Account that is subject to Participant direction to theInvestment Option(s) as the Committee, in its sole discretion, may from time totime designate in investment procedures. The Committee, in its sole discretion, may establish from time to timeinvestment procedures for a Participant to change his Investment Optiondesignations (for his future amounts subject to Participant direction, his existingamounts subject to Participant direction, or both).  Until a Participant timely files a new investment election form,his prior Investment Option designations shall control.

 

4.3                                 Credits to Account.  The Employer Profit Sharing Contributionshall be credited to a Participant’s Account in terms of cash on the samedate(s) as employer profit sharing contributions are credited to participants’accounts under the Qualified Plan.

 

4.4           Accounts Unfunded.

 

(a)                                  Accounts shall be accounting accruals, in the names of Participants, onthe Employer’s books.  Accounts shall beunfunded, so that the Employer’s obligation to pay benefits under the Plan ismerely a contractual duty to make payments when due under the Plan.  The Employer’s promise to pay benefits underthe Plan shall not be secured in any way, and except as provided inSubsection (b), the Company shall not set aside or segregate assets forthe purpose of paying amounts credited to Participants’ Account.

 

(b)                                 Notwithstanding the provisions of Subsection (a), the Company, inits sole discretion, may establish a Rabbi Trust.  The Employer, in its sole discretion, may make such contributionsto the Rabbi Trust as the Committee determines are appropriate to enable theEmployer to pay benefits under the Plan. Any Rabbi Trust established under this Section

 

5

----

 

shall be created pursuant to a written trustdocument that conforms to the model form of rabbi trust agreement approved bythe Internal Revenue Service in Revenue Procedure 92-64 (as amendedfrom time to time).

 

**ARTICLE V**

**DISTRIBUTIONOF BENEFITS**

 

5.1           General Distribution Rules.

 

(a)                                  General Provisions.  Except as otherwise provided inSections 5.2 and Section 5.3, a Participant’s Account shall bedistributed to the Participant (or to his Beneficiary in the event of hisdeath) as provided in this Section.

 

(b)                                 Participant’s Election.  A Participant may elect, on a form providedby the Committee and from among the options described in this Section, the formfor the payment of his Account. Notwithstanding the payment terms designated by a Participant on anyprior election form, a Participant may elect to change the form of payment ofhis Account to a form of payment otherwise permitted under this Section; providedthat such election shall be made on a form provided by the Committee, andprovided further that any such election made less than one year prior to theParticipant’s Termination of Employment shall not be valid, and in such case,the distribution of his Account shall be made in accordance with the latestvalid election or elections of the Participant.

 

(1)                                  Form of Distribution.  A Participant may elect to have hiscontributions (and attributable earnings) for a Plan Year distributed in one ofthe following forms:

 
| (A)    | A lump sum payment; or                                                                |
|--------|---------------------------------------------------------------------------------------|
|   |                                                                                  |
| (B)    | Substantially equal annual  installments over a specified number of two to ten years. |

 

(2)                                  Time of Distribution.  Distribution of a Participant’s interest inhis Account shall commence as soon as reasonably practicable after the earlierof the Participant’s death or his Termination of Employment.  Subsequent installments shall be payable onor as soon as administratively feasible following the first business day ofeach succeeding year.

 

(c)                                  Default Procedure.  If a Participant fails to make an electionpursuant to this Section, then, except as otherwise provided inSection 5.2  and Section 5.3,the Participant’s Account (and attributable earnings) shall be distributed infive substantially equal annual installments commencing as 

 

6

----

 

                                                                soon as reasonablypracticable after the earlier of the Participant’s death or his Termination ofEmployment.

 

(d)                                 Distribution in Cash.  All distributions from the Plan shall be madein the form of cash.

 

(e)                                  Small Accounts.  Notwithstanding a Participant’s electionregarding the form of payment of his Account, in the event that a Participant’sAccount has an aggregate value of less than $50,000 as of his Termination ofEmployment, the Committee shall have the discretion to distribute theParticipant’s entire interest in his Account in a single lump sum payment incash.

 

5.2           Distribution Upon a Change in Control.

 

(a)                                  Election for a Lump Sum Payment.  Each Participant who is designated as a“Selected Participant” by the Committee of the Company (a “SelectedParticipant”) shall be entitled to make a special payment election inaccordance with the provisions of this Section 5.2(a).

 

(i)                                     Distribution Pursuant to Special Payment Election.  A Selected Participant mayelect, on a form provided by the Committee, to receive a distribution of hisAccount in a single lump sum payable no later than 30 days after the later of(1) the occurrence of a Change in Control or (2) the date of his Terminationof Employment.

 

(ii)                                  Effectiveness of Special Payment Election.  An election made pursuant to this Section5.2(a) shall become operative only upon the occurrence of a Change inControl.  Once operative, an electionmade pursuant to this Section 5.2(a) shall override any other payment electionmade by the Selected Participant pursuant to Section 5.1(b), but only if theSelected Participant’s Termination of Employment occurs either (1) prior to theoccurrence of a Change in Control or (2) during the 24-month period commencingupon the occurrence of a Change in Control.

 

(iii)                               Deadline for Special Payment Election.  In order to be effective, an election madepursuant to this Section 5.2(a) must be made either:

 

(1)                                  Prior to the occurrence of a Potential Change in Control; or

 

(2)                                  With the consent of the Committee, during the thirty-day periodcommencing upon the occurrence of a Potential Change in Control.

 

7

----

 

Inthe event that a Potential Change in Control occurs and subsequently ceases toexist, other than as a result of a Change in Control, such Potential Change inControl shall be disregarded for purposes of this Section 5.2(a)(iii).

 

(iv)                              Withdrawal of Special Payment Election.  A Selected Participant may withdraw, on aform provided by the Committee, a special payment election made by him pursuantto this Section 5.2(a) at anytime specified in Section 5.2(a)(iii)(1) or (2).

 

(b)                               Committee Discretion for a Lump Sum Payment.  Notwithstanding any otherSection, if a Change in Control occurs, the Committee in its sole discretionmay elect to accelerate the distribution of a Participant’s Account so that aParticipant’s Account shall be distributed to the Participant (or, in the eventof his death, to his Beneficiary) in a single lump sum payment no later than 30days after the Change in Control occurs.

 

(c)                                Definition of Change in Control.  A “Change in Control” of the Company will bedeemed to have occurred if any of the following events occur:

 

(i)                                     Any Person is or becomes the beneficial owner (as defined in Rule 13d-3under the Securities Exchange Act of 1934, as amended (“1934 Act”)), directlyor indirectly, of securities of the Company (not including in the securitiesbeneficially owned by such Person any securities acquired directly from theCompany or its affiliates) representing more than twenty percent (20%) of thecombined voting power of the Company’s then outstanding securities, excludingany Person who becomes such a beneficial owner in connection with a transactiondescribed in Clause (1) of Paragraph (ii) below; or

 

(ii)                                  There is consummated a merger or consolidation of the Company or anydirect or indirect subsidiary of the Company with any other corporation,partnership or other entity, other than (1) a merger or consolidation thatwould result in the voting securities of the Company outstanding immediatelyprior to that merger or consolidation continuing to represent (either byremaining outstanding or by being converted into voting securities of thesurviving entity or its parent) at least sixty percent (60%) of the combinedvoting power of the securities of the Company or the surviving entity or itsparent outstanding immediately after the merger or consolidation, or (2) amerger or consolidation effected to im­plement a recapitalization of theCompany (or similar transaction) in which no Person is or becomes thebeneficial owner, directly or indirectly, of securities of the Company (notincluding in the

 

8

----

 

                                                securities beneficially owned by such a Person any securities acquireddirectly from the Company or its affiliates other than in connection with theacquisition by the Company or its affiliates of a business) representing twentypercent (20%) or more of the combined voting power of the Company’s thenoutstanding securities; or

 

(iii)                               During any period of two (2) consecutive years, individuals who at thebeginning of that period constitute the Board of Directors and any new director(other than a director whose initial assumption of office is in connection withan actual or threatened election contest, including but not limited to aconsent solicitation, relating to the election of directors of the Company)whose appointment or election by the Company’s stockholders was approved orrecommended by a vote of at least two-thirds (2/3) of the directors thenstill in office who either were directors at the beginning of that period orwhose appointment, election, or nomination for election was previously soapproved or recommended cease for any reason to constitute a majority of theBoard of Directors; or

 

(iv)                              The stockholders of the Company approve a plan of complete liquidationor dissolution of the Company or there is consummated a sale or disposition bythe Com­pany of all or substantially all of the Company’s assets, other than asale or disposition by the Company of all or substantially all of the Company’sassets to an entity, at least sixty percent (60%) of the combined voting powerof the voting se­curities of which are owned by stockholders of the Company insubstantially the same proportions as their ownership of the Companyimmediately prior to the sale.

 

(d)                               Definition of Potential Change in Control.  A “Potential Change in Control” means any periodduring which any of the following circumstances exist:

 

(i)                                     The Company enters into an agreement, the consummation of which wouldresult in the occurrence of a Change in Control; provided that a PotentialChange in Control shall cease to exist upon the expiration or other terminationof such agreement; or

 

(ii)                                  The Company or any Person publicly announces an intention to take or toconsider taking actions which, if consummated, would constitute a Change inControl; provided that a Potential Change in Control shall cease to exist whenthe Company or such Person publicly announces that it no longer has such anintention; or

 

(iii)                               Any Person who is or becomes the beneficial owner (as defined in Rule13d-3 under the 1934 Act), directly or indirectly, of securities 

 

9

----

 

                                                of the Company representing ten percent (10%) or more of the combinedvoting power of the Company’s then outstanding securities, increases suchPerson’s beneficial ownership of such securities by an amount equal to fivepercent (5%) or more of the combined voting power of the Company’s thenoutstanding securities; or

 

(iv)                              The Board of Directors adopts a resolution to the effect that, forpurposes hereof, a Potential Change in Control has occurred.

 

Notwithstanding anything herein to the contrary, aPotential Change in Control shall cease to exist not later than the date that(i) the Board of Directors determines that the Potential Change in Control nolonger exists, or (ii) a Change in Control occurs.

 

(e)                                  Definition of Person.  “Person” has the meaning set forth inparagraph 3(a)(9) of the 1934 Act, as modified and used in subsections 13(d)and 14(d) of the 1934 Act; however, a Person will not include the following:(1) the Company or any of its subsidiaries or affiliates; (2) a trustee orother fiduciary holding securities under an employee benefit plan of theCompany or any of its subsidiaries or affiliates; (3) an underwritertemporarily holding securities pursuant to an offering of those securities; or(4) a corporation owned, directly or indirectly, by the stockholders of theCompany in substantially the same proportions as their ownership of stock ofthe Company.

 

5.3                                 Death Benefits.  In the event that a Participant dies beforehis Account is completely distributed, his Beneficiary shall be entitled to adeath benefit equal to the amount credited to the Participant’s Accountimmediately before his death.  The formand timing of the payment of the death benefit shall be determined pursuant toSection 5.1.

 

5.4                                 Designation ofBeneficiary.  A Participant’s Beneficiaryshall be the person or persons, including a trustee, designated by theParticipant pursuant to the practices of, or rules prescribed by, theCommittee, as the recipient of any benefits payable under the Plan followingthe Participant’s death.  To beeffective, a Beneficiary designation must be filed with the Committee duringthe Participant’s life on a form prescribed by the Committee; provided,however, that finalized divorce or marriage (other than a common law marriage)shall automatically revoke a previously filed Beneficiary designation, unlessin the case of divorce the former spouse was not designated as the Beneficiaryor in the case of marriage the Participant’s new spouse is already thedesignated Beneficiary.  If theParticipant designates more than one Beneficiary, any payments under thisArticle to each Beneficiary shall be made in equal shares unless theParticipant has designated otherwise, in which case the payments shall be madein the shares designated by the Participant. If no person has been 

 

10

----

 

                                                designated as the Participant’s Beneficiary, if a Participant’sBeneficiary designation has been revoked by marriage or divorce, or if noperson designated as Beneficiary survives the Participant, the Participant’sestate shall be his Beneficiary.

 

**ARTICLE VI**

**ADMINISTRATION**

 

6.1                                 Administrator.  The Cinergy Corp. Benefits Committee shallbe the Administrator of the Plan.  Alldecisions of the Committee shall be by a vote of a majority of its members andshall be final and binding.

 

6.2                                 Notices.  Any notice or filing required or permittedto be given to the Committee under the Plan shall be sufficient if it is inwriting and is hand delivered, or sent by registered or certified mail, to anymember of the Committee or its designate. The notice or filing shall be deemed made as of the date of delivery, orif delivery is made by mail, as of the date shown on the postmark on the receiptfor registration or certification.

 

6.3                                 Powers and Duties of theCommittee.  Subject to the specificlimitations stated in this Plan, the Committee shall have the following powers,duties, and responsibilities:  to carryout the general administration of the Plan; to cause to be prepared all formsnecessary or appropriate for the administration of the Plan; to keepappropriate books and records; to determine amounts to be distributed toParticipants and Beneficiaries under the provisions of the Plan; to determine,consistent with the provisions of this instrument, all questions ofeligibility, rights, and status of Participants and Beneficiaries under thePlan; to issue, amend, and rescind rules relating to the administration of thePlan, to the extent those rules are consistent with the provisions of thisdocument; to exercise all other powers and duties specifically conferred uponthe Committee elsewhere in this document; and to interpret, with discretionaryauthority, the provisions of this Plan and to resolve, with discretionaryauthority, all disputed questions of Plan interpretation and benefiteligibility.

 

**ARTICLE VII**

**AMENDMENTAND TERMINATION**

 

7.1                                 Amendment.  The Company reserves the right to amend thePlan at any time by action of the Board of Directors or the Committee.  The Company, however, may not make anyamendment that reduces a Participant’s benefits accrued as of the date of theamendment unless the Participant consents in writing to the amendment.  Notwithstanding the foregoing, the Companymay not amend any of the provisions of Section 5.2 within three years of aChange in Control.

 

7.2                                 Termination.  The Company reserves the right to terminatethe Plan, by action of the Board of Directors or the Committee, at any time itdeems appropriate.  Upon 

 

11

----

 

                                                termination of the Plan, no further contribution shall be made to thePlan.  Subject to Section 5.2,distribution following termination of the Plan shall be made at the time andunder the terms and conditions as the Company, in its sole discretion, shalldetermine, which shall commence no later than the earlier of a Participant’sdeath or Termination of Employment.

 

**ARTICLE VIII**

**MISCELLANEOUS**

 

8.1                                 Relationship.  Notwithstanding any other provision of thisPlan, this Plan and action taken pursuant to it shall not be deemed orconstrued to establish a trust or fiduciary relationship of any kind between oramong the Company, Participants, Beneficiaries or any other persons.  The Plan is intended to be unfunded forpurposes of the Code and ERISA.  Therights of Participants and Beneficiaries to receive payment of deferredcompensation under the Plan is strictly a contractual right of payment, andthis Plan does not grant, nor shall it be deemed to grant Participants,Beneficiaries, or any other person any interest or right to any of the funds,property, or assets of the Employer other than as an unsecured general creditorof the Employer.

 

8.2                                 Other Benefits and Plans.  Nothing in this Plan shall be deemed toprevent Participants from receiving, in addition to the benefits provided forunder this Plan, any funds that may be distributable to them at any time underany other present or future retirement or incentive plan of the Employer.

 

8.3                                 Anticipation of Benefits.  Neither Participants nor Beneficiaries shallhave the power to transfer, assign, anticipate, pledge, alienate, or otherwiseencumber in advance any of the payments that may become due under this Plan,and any attempt to do so shall be void. Any payments that may become due under this Plan shall not be subject toattachment, garnishment, execution, or be transferable by operation of law inthe event of bankruptcy, insolvency, or otherwise.

 

8.4                                 No Guarantee ofContinued Employment.  Nothing contained in this Planor any action taken under the Plan shall be construed as a contract ofemployment or as giving any Participant any right to be retained in employmentwith the Employer.  The Employer specificallyreserves the right to terminate any Participant’s employment at any time withor without cause, and with or without notice or assigning a reason, subject tothe terms of any written employment agreement between the Participant and theEmployer.

 

8.5                                 Waiver of Breach.  The Company’s or the Committee’s waiver ofany Plan provision shall not operate or be construed as a waiver of anysubsequent breach by the Participant.

 

12

----

 

8.6                                 Protective Provisions.  Each Participant shall cooperate with theCompany and the Committee by furnishing any and all information requested bythe Company or the Committee in order to facilitate the payment of benefitsunder the Plan, and by taking any other relevant action as may be requested bythe Company or the Committee.  If anyParticipant refuses so to cooperate, the Company shall have no furtherobligation to the Participant or his Beneficiary under this Plan, other than todistribute to the Participant the cumulative contributions that have been made on his behalf, pursuant tothe Plan; provided, however, that the Committee may determine that benefits maybe payable in an amount reduced to compensate the Company for any loss, cost,damage, or expense suffered or incurred by the Company as a result in any way ofthe Participant’s action or failure to act.

 

8.7                                 Benefit.  This Plan shall be binding upon and inure tothe benefit of the Employer and its successors and assigns.

 

8.8                                 Responsibility for LegalEffect.  Neither the Committee nor theCompany makes any recommendations or warranties, express or implied, or assumesany responsibility concerning the legal context or other implications oreffects of this Plan.

 

8.9                                 Tax Withholding.  The Employer shall withhold from anycontributions or from any payment made under the Plan such amount or amounts asmay be required by applicable federal, State, or local laws.

 

                CinergyCorp. has caused this document to be executed by its duly authorized officer,as of the 20th day of December, 2002.

 
|   | /s/  Timothy J. Verhagen |
|--------|-------------------------------|
| By:    |                          |
|   | Timothy J. Verhagen           |
|   | Vice President                |
|   | Human Resources               |

 

----